N, A FEMALE, was a child within the meaning of the Child Act 2001 (CA). On April 11, 2003 she was arrested by police on suspicion of having committed an offence under Section 420 of the Penal Code (cheating and dishonestly inducing delivery of property).
As investigations could not be completed within 24 hours, police produced N before a magistrate at Kuala Lumpur for an order to remand her for seven days under Section 117 of the Criminal Procedure Code (CPC).
The magistrate, recognising that N was a child, converted the application to one under Section 84(2) CA. The provision reads as follow:
“If it is not possible to bring a child before a Court for Children within the time specified in subsection (1), the child shall be brought before a magistrate who may direct that the child be remanded in a place of detention until such time as the child can be brought before the Court for Children.”
The magistrate accordingly made an order for her detention. The learned magistrate then entertained some doubts as to the propriety of the course of action taken and requested the high court to revise the order made if there was an error.
At the revision proceeding before a high court judge, the deputy public prosecutor argued that the procedure adopted by the magistrate was wrong as the application ought to have been one under Section 117 CPC as the applicable law dealing with remand applications to facilitate investigations.
The issue for deliberation before the high court was therefore whether the arrest and detention of a child must be under Section 117 CPC, as contended by the deputy public prosecutor, or under the CA as understood by the magistrate.
According to the high court judge, the answer must lie in Section 83(1) CA which reads as follows:
“Notwithstanding anything contained in any written law relating to the arrest, detention, and trial of persons committing any offence but subject to sub-sections (3) and (4), a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this act.”
This section makes it manifestly patent that the arrest and detention of a child shall be in accordance with the CA. It thereby renders Section 117 CPC inapplicable. Unlike Section 117 CPC, Section 84(2) CA which deals with the detention of a child does not prescribe any time period for detention.
The determination of the period in such a situation is therefore governed by Section 54(2) of the Interpretation Act 1967 (IA) which reads as follows:
“Where no time is prescribed within which anything shall be done that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”
The judge accordingly decided that that the length of time for which a child may be detained is for a period which is absolutely necessary as decided by the court on the facts of each case. There can be further orders of detention if deemed to be appropriate.
It was further that Section 110 CA – which provides for the arrest of “any person” for the commission of any offence against CA to be in accordance with the CPC – must be interpreted as being applicable to a person who is not a child.
As such, the course of action adopted by the magistrate was correct in law. (See Re N (a child) [2003] 3 MLJ 45)
The deputy public prosecutor appealed against the decision of the high court judge. When the appeal came before the Court of Appeal, the deputy public prosecutor informed the appellate court that N had been released after four days without any charge being preferred against her and that no further proceedings were contemplated against her.
The deputy public prosecutor, however, still wished to proceed with the appeal in order to obtain a ruling as to the applicability of Section 117 CPC to a child, which ruling, whichever way it might go, would have no effect on N.
The Court of Appeal accordingly dispensed with the further attendance of N, who was unrepresented and who would have had nothing to contribute in the appeal. The appellate court agreed to hear the appeal and heard the deputy public prosecutor’s submission.
The deputy public prosecutor argued that since Section 83(1) belongs to Part X of CA which deals with criminal procedure in the Court for Children and not with the investigation of offences alleged to be committed by a child, and since the detention provided for in that part is detention of a child pending trial or punitive detention after trial, the word “detention” in that section should be construed as not being intended to include detention pending investigation.
The Court of Appeal noted that it did not have the benefit of contrary argument. However, being unable to conceive of any contrary argument that could successfully be raised, the appellate court agreed with the deputy public prosecutor.
Appellate court judge Datuk Abdul Aziz Abdul Rahim, who delivered the judgement of the appellate court, said:
“We did ask ourselves the question why the scope of the word ‘detention’ should be curtailed by the mere fact of its being positioned in a part of the act that provides for detention for the purposes that we have mentioned (that is, pending trial or punitive detention after trial) and not for purposes of investigation, but we were overwhelmed by the consideration that if Parliament had intended to prohibit the detention of a child beyond 24 hours for the reason that investigation cannot be completed, it would have done so.”
Accordingly, the Court of Appeal allowed the appeal. The appellate court held that Section 117 CPC is applicable to a child.
The appellate court distinguished between detention pending trial and detention pending investigation. Detention in Section 83(1) CA should be construed as not being intended to include detention pending investigation.
With the greatest of respect, without the benefit of a counter argument, the appellate court did not consider the legislative purpose of the CA which is, among others, to protect a child in all circumstances.
In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.
The arrest and detention of a child should be in conformity with the CA and should be used only as a measure of last resort and for the shortest appropriate period of time.
Instead of that, Section 83A(4) CA – inserted in 2016 vide the Child (Amendment) Act 2016 (Act A1511) – provides that the CA shall not affect the powers of a police officer to deal with a child arrested in accordance with the CPC.
The first preamble of the CA clearly recognises that the country’s vision of a fully developed nation is one where social justice and moral, ethical and spiritual developments are just as important as economic development in creating a civil Malaysian society that is united, progressive, peaceful, caring, just and humane.
Let’s ponder how the 15-year-old girl who recently made headlines in Terengganu for stabbing the baby she gave birth to was being held on a seven-day remand order for investigation under section 302 of the Penal Code for murder.
As rightly raised by the Human Rights Commission of Malaysia children’s commissioner Prof Datuk Noor Aziah Mohd Awal, is it in the interest of the child?
Does it reflect the country’s vision? – The Vibes, February 14, 2022
Hafiz Hassan reads The Vibes
